Dorothy Rabinowitz had an excellent essay in yesterday's Wall Street Journal, available free on OpinionJournal.com, about the Duke rape case entitled, The Michael Nifong Scandal. Her essay places this incident in the context of the prosecutorial abuses that she did so much to combat in the 1980s and '90s:

For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout most of the '90s. They built case after headline-making case charging the mass molestation of small children, and managed to convict scores of innocent Americans on the basis of testimony no rational mind could credit. Law officers who regularly violated requirements of due process in their effort to obtain a conviction, they grasped the special advantage that was theirs: that for a prosecutor dealing with molestation, and wearing the mantle of avenger, there was no such thing as excess, no limits to what could be said of the accused. In court, rules could be bent, any charges presented, and nonexistent medical evidence proclaimed as proof positive of the accusation.

I believe this disturbing phenomenon is distinct from "normal" prosecutorial overreaching in ordinary cases. This sort of misconduct is fueled by publicity and politics, whereas normal prosecutions take place in almost complete obscurity. On the one hand, fewer people--in particular the press--are looking over the prosecutor's shoulder. On the other hand, the lack of publicity reduces the incentive to dig in and go for broke, which makes it all the more mysterious to me when prosecutors have done so. In large offices, prosecutors must get supervisors to sign off on reducing or dropping charges precisely to prevent them from getting out of trying cases that are not dead-bang winners. But like the psychology of defense, the psychology of prosecution is far more complex than this.

Some commentators on other threads have criticized the lack of blogging on the Duke case here at the Conspiracy. In my case, as a former criminal prosecutor (in the Cook County State's Attorney's Office), I am very interested in the issue of prosecutorial misconduct and incompetence in general, and in this case in particular, and have been following events on Durham-in-Wonderland. But I also know that, aside from the issue of prejudicial statements to the press, accusations of prosecutorial misconduct depend entirely on the state of the evidence available to the prosecutor and that, at this stage in the proceedings, no one besides the lawyers really know what evidence exists. So ordinarily there is nothing to do but wait and see how the evidence unfolds at trial. It is highly unusual for a case to implode in this manner at this stage. Above all, this is a credit to the defense team.

As I have said for many years, our adversarial system depends for its effectiveness on the competence of the lawyers on both sides of the case. Where persons are wrongly convicted (as opposed to being wrongly accused as here) this is usually the result of incompetent defense lawyering, rather than some nefariousness on the part of the prosecutor. Where the criminal justice system is in greatest need of reform is ensuring competent counsel to all accused, regardless of their guilt. In my opinion, and having watched considerable portions of the trial, the OJ Simpson case is a rare example of severe prosecutorial incompetence; to be sure, the defense counsel were competent, but hardly a Dream Team as advertised. Prosecutors with experience in high profile cases, such as those who tried the Gacy case in Chicago when I was an ASA, should have prevailed. It was all-too-easy and a pity to blame the jury in the Simpson case for the failings of the prosecutors. As I said at the time, the Simpson prosecutors were either the best that the LA DA's office had to offer, which would be shocking (and which I do not believe), or they were not, which would be equally shocking (and a poor reflection on Gill Garcetti, the District Attorney who selected them). On the issue of incompetence of the Simpson prosecutors, I recommend Vincent Bugliosi's Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder.

But the scandal of Duke case is not about the incompetence of either line prosecutors or ordinary criminal defense attorneys, but the politically-motivated misconduct of an elected District Attorney. And it is also about how one's life can be ruined, or at minimum forever altered, not to mention bankrupted, by a false accusation from which one is eventually vindicated.

Even worse is her story of the Massachusetts man who did 18 years in an obviously fake child sex abuse case. Makes you wonder - isn't there any public official up there with common decency? We laughed at the Salem witch trials. 300 years later and this was worse. In Salem, the Governor sent an investigator who absolved the (survivng) accused. This victim has to wear a locator around his ankle, and is listed as a high risk sex offender.

Personally,
I think this is "normal" prosecutorial over-reaching to begin with. It is only the media attention which has hardened the prosecutor. Which makes you ask if the Defendant's weren't rich, and the media not involved, would these guys already be convicted felons?

Randy knows whereof he speaks. Just about any high-profile case will have a prosecutor sharpening his knife, anxious not only to get headlines but to jump into private practice as a defense lawyer known for being completely unscrupulous. In Cook County there have been cases where the police painted red marks on a man's boxer shorts so as to hold the "bloody" garment up to the jury; they obtained a conviction. Prosecutorial suppression of negative evidence is the most common of all. The prosecuting team interviews witnesses, one or two of whom are eye-witnesses to the defendant's presence far away from the murder scene at the time and place of the murder. Easiest thing to do is not reveal the names of these alibi witnesses to the defense team. In a case I had on habeas, the prosecutor had simply "lost" the fingernail clippings of the victim where she had scratched her real assailants in order to pin her murder on her husband (which they did). If I may digress, it's ironic that the defendant, who was convicted for killing his wife under circumstances where there was uncontradicted proof that he was somewhere else at the time, was the physician for Martin Luther King Jr. in his civil rights march in Chicago. My client walked alongside Dr. King, and when coke bottles and stones were thrown at them from rooftops and began hitting them, he pushed Dr. King down on the ground and ocvered him with his own large body. He told me something I'll never forget: that Dr. King was scared, he was not a brave man, he was shaking and trembling.

The prosecutor, Pat Tuite, did not ask for the death penalty even though his case was that this was deliberate murder. Why? Fear of heightened scrutiny on appeal; Tuite knew that he had no case at all against the defendant. The strategy worked; a life sentence was imposed. (Later I contacted some of the jurors, who said they were rushed into a verdict and that each day they do penance for sentencing an innocent man.)

My wife Barbara, an acclaimed writer of murder mysteries, wrote the story of this case as a "True crime" novel which won the national award the year it was published: "The Doctor, The Murder, The Mystery." I wroten an article in the Cardozo Law Review showing how Judge Easterbrook misstated the facts after when I argued the case on appeal; he upheld the conviction only on a fictitious set of facts that placed Dr. Branion at the murder scene.

You may have also seen the case repeated many times in syndication on the "Unsolved Mysteries" television series.

Prosecutors tell me that defense attorneys are sleazebags and will lie and cheat to get their clients off. The state, they tell me, has to fight fire with fire. What I find interesting is that the defense attorney sleazebags cut their teeth in the prosecutor's office. I also find the imbalance interesting between prosecutor and defense attorney. The prossecutor has all the physical evidence and the witness lists that the police and detectives have collected. If he suppresses or destroys exonerating evidence, the defense attorney might never find out about it. In an attempt to restore the balance, the law does not require the defense attorney to turn over to the prosecution in advance of the trial testimony the witnesses that he may wish to call. I suggest that this attempt to level the playing field, while sincerely intended, is far too little and too late.

There's another thing I'll never foreget in my work on the Branion case. It was a saying that goes around the prosecutor's office, and I'm confident Randy Barnett has heard it: "If the defendant is guilty, the case will be assigned to one of the bright up-and-coming prosecutors in the offices of the state's attorney. If the defendant is innocent, the case is a job for the State's Attorney himself."

This is a refreshing discussion that I wish were conducted or noticed more often in the corridors of power. Tony's story is sadly more common than one would think IMO.

I have seen it personally and up close. The prosecutors hold all the cards. I also have an interesting post from December in which I describe a former APA telling me that the only place you can make a difference (do justice is what I presumed he meant from context of our conversation) was in the DA's office, from which I infer that he too PERSONALLY knows they hold all the cards. Unfortunately, not all the APAs and DAs are as ethical as claimed.

Most go for convictions to advance their careers and trophy cases, and are not out to do "justice." Not many get caught. I definitely agree as to the critical importance of providing competent counsel, and that this "right" or provision can hardly be vindicated without bolstering habeas review. Perhaps it is high time that AEDPA's provisions paring back review, aka "deferential review" should itself be reviewed. Additionally, we should provide more counsel for habeas cases.

As I said at the time, the Simpson prosecutors were either the best that the LA DA's office had to offer, which would be shocking (and which I do not believe), or they were not, which would be equally shocking (and a poor reflection on Gill Garcetti, the District Attorney who selected them).

Is it possible that Garcetti wanted an acquittal for political reasons? As I recall, he was up for election. A conviction would have been unpopular with many of Simpson's ethnicity. And hat it touched off riots, the population at large would have been put out. Some or all of this sould have been blamed on the DA. As it was, his less-than-sparkling prosecutors tried their best but lost, and Garcetti got a free pass. In this vein, it is of interest to me (I don't know what California venue rules are) that a murder in West LA involving Three West LA residents (remember-- the poor waiter was killed as well) the case was tried in downtown LA rather than in Santa Monica Superior Court.

And it is also about how one's life can be ruined, or at minimum forever altered, not to mention bankrupted, by a false accusation from which one is eventually vindicated.

If all charges were dropped tomorrow, the boys' families will each have have hundreds of thousands of dollars in legal fees. My impression is that they ar e upper middle class, rather than rich. The legal bills likely will wipe out many or all of the families' lassets.

If prosecutors everywhere were cringing as Nifong's misdeeds were reported, it was because of the affront to justice, not because his conduct was standard operating procedure exposed. Comments here portraying Nifong's behavior and/or motives as typical of prosecutors are just nonsense.

I spent 27 years as an appointed and elected prosecutor and was an active member of the National District Attorneys' Association. I don't ever recall there being such a shortage of the guilty that my colleagues or I had to stoop to deliberately prosecuting the innocent. Moreover, common sense suggests that the probable consequences of prosecuting the innocent far outweigh any potential gains.

In most metro jurisdictions, ninety-five per cent of cases, or more, are resolved by guilty plea. In the remaining cases, particularly high profile cases, an ADA handles the case, is closely supervised, and faces the most rigorous burden in history: proof beyond a reasonable doubt to a unanimous jury. Not a lot of skating room for the unscrupulous DA.

Steve Neely,
How do you know there "was no shortage of the guilty?" Just because they took pleas? Did it ever occur to you that a person who was innocent would take a plea deal because they felt the DA would hit them with all possible charges and ask for the max if they took it to trial?

That being said, I will agree with you that the problem of DA's prosecuting those they truly believe are innocent is probably extremely rare. But, if the prosecutor refuses to consider any evidence of innocence, how valuable is their belief, or the fact that they would dismiss charges when they believed they were unwarranted? How often did you look at the evidence, after charges had already been brought, and dismiss outright?

Just one story. I had a client accused of beating his girlfriend. The girlfriend had a witness. The only problem was that the two stories didn't match. And I'm not talking minor details. One basically said he was at the house, hit her and threw her to the floor, was gone about an hour, then came back, then we called the police. The friend said that he was at the house, was gone about an hour, then shoved her to the floor, but never hit her. The DA never listened to the audio of their interview until I pointed it out.

What's even more of a problem, in my opinion is the prosecutor who will charge every possible charge under the sun, and at higher degrees than reasonably justified, in an attempt to convince the Defendant to plead down.

No doubt, there is a lot of variety among prosecutors, and some of them behave badly, and some behave well, but it is worth noting that every single professor at Duke, including without limitation the law professors, has behaved badly.

You write: I believe this disturbing phenomenon is distinct from "normal" prosecutorial overreaching in ordinary cases. This sort of misconduct is fueled by publicity and politics, whereas normal prosecutions take place in almost complete obscurity."

It is heartening to read the many comments by posters cognizant of the problems which beset the criminal justice system. I hope this trend increases and leads to meaningful reform.
I do not believe that there is widespread intentional and mean-spirited rule bending against defendants. Rather it appears to me that we are seeing the predictible result of many years of overwhelming tough-on-crime-at-any-cost political pressure. This pressure is evident in all criminal cases, not only the well-publicised ones: The ever stricter, often draconian laws passed by legislatures. Whether this is a result of or the cause for a change of attitude as to what constitutes justice in a democracy, I do not know. Perhaps someone has a lead to research on the topic?
As an example of what I mean, let me point to a sentence in the Rabinowitz article, referring to a demonstrably innocent victim of political prosecution who must now wear a tracking device: "He has recently been advised of pending legislation that will require him to pay $10 a day for the global positioning tag on his leg, that tracks him."
The fact that such legislation is even proposed speaks volumes, at least it does to me.

"tough on crime" came as a reaction or overreaction to the touchy-feely easy on crime which preceded it.
Whenever there is a ham-fisted, clunky law or regulation or "solution", look for earlier attempts to solve the problem which were resisted.
I'm called for jury duty next month.
I guess I'm tuned up. Presume innocence on the part of the defendant and guilt on the part of the prosecutor.
That about right?

We may not know *all* of the evidence, but we certainly know quite a bit of the evidence. So I'm frankly not overly impressed with this sort of justification. I'd detail the evidence we do know at this point, but it's clearly available on numerous websites.

Personally I've known a few prosecutors. I've known a few defense attorneys. And I don't care for either set. But I will say that, after this case, I am very very much in favor of altering the prosecutor immunity so that any, ANY, misconduct whatsoever by a prosecutor, regardless of when it is discovered, removes all immunity from that prosecutor for any civil liabilities.

So if 45 years later a prosecutor gets served with a civil suit for misconduct in his early twenties, then I'm absolutely fine with that. Hell throw in calculated interest on top of it.

Personally I think prosecutors have been getting a free ride on the vast levels of misconduct done in this country and it has to end. That a case so transparently buggered has lasted so long means that there are no safeguards actually in place. There are supposed to be safeguards, but the reality is far different from the theory.

I appreciate Steve Neely's comments. I have been a prosecutor for a little over nine years, and I always closely scrutinize the cases and won't try someone I believe is innocent. I have dismissed cases that were filed, and I have conducted investigations that have caused the truth to come to light. To take this jackass Nifong and presume that every prosecutor is therefore evil is definitely wrong. However, I disagree with Randy: there are indeed other cases of prosecutorial abuse out there (I know this from reading about it, not because I've ever seen it firsthand) and it does get innocent people convicted at times.

However, I disagree with Randy: there are indeed other cases of prosecutorial abuse out there (I know this from reading about it, not because I've ever seen it firsthand) and it does get innocent people convicted at times.

You know what's funny? I'm always reading these horror stories about rogue prosecutors, but I've never actually seen any of them. And I've seen it all these past six years. Like Patterico, I'm sure they exist-Nifong would seem to be an example-It's just that I don't see it. If anything, most of the public's complaints about us seem to originate in our reluctance to file weak or marginal cases, not in our willingness to prosecute the innocent.

No, it is the exact same sort of prosecutorial convict-at-all-cost overreaching one sees in any and all criminal cases. Just because a certain class of case gets media attention doesn't mean it's special; it just means you see it by virtue of the media attention. It also means you'll necessarily hear the defendant's protestation's of innocence. You don't hear or see this in State v. RandomPoorBlackGuy, the possession of crack case now pending in the Xth District Court of Random County, USA. That doesn't mean it doesn't exist.

Pick a criminal trial anywhere in the USA. If the media secretly covered it, you'd see the same sort of prosecutorial abuse and unethical behavior you're seeing in the Duke case. Ethical prosecutors who dismiss winnable cases against innocent or likely innocent defendants don't get promoted. It's easy to convict a guilty person; to convict an innocent person actually takes talent as a trial lawyer. Talent is respected, especially among one's peers/team members.

I dismiss or refuse to file cases every day. If you think I have any interest in prosecuting the innocent you're out of your goddamn mind. Believe it or not, I don't have to go looking for people to prosecute.

Paxti: if you decline to file or try the case, it is because you are convinced you can't win... Likely due to missing or blatantly flawed evidence. And there are 10 prosecutors in your office who would be more than willing to take up the challenge. I'll bet you tried to extract a minimal plea bargain out of the defendant before you dismissed the case.

"I don't ever recall there being such a shortage of the guilty that my colleagues or I had to stoop to deliberately prosecuting the innocent. Moreover, common sense suggests that the probable consequences of prosecuting the innocent far outweigh any potential gains."

It's not about a "shortage of guilty" people, it's about flaunting a "tough on crime" attitude, letting "the criminals" (even the innocent ones) know the rule of law triumphs, sucking up to the whining, nagging, crying, pouting, vengeful "victims" (the more vengeful they are towards the defendant, the more likely they are or call themselves Christians in my experience as a defense lawyer, and moving on up through the ranks at the DA's office. It's about 'knowing' the Defendant is guilty of something, even if it is technically not what he is accused of. It's not about locking people away solely for the sake of locking people away. That's a part of it, but a small one.

And you know darn well that there are absolutely no consequences for prosecuting and/or convicting innocent people, other than maybe having to briefly testify at a habeas hearing a few years down the road where you can make every effort possible to keep Jimbo Defendant locked up (after all, if he got out what would the poor victim think?).

Show me ONE prosecutor who has EVER gotten in trouble for convicting a person later shown to be innocent.

I don't mean to sound nasty and accusative towards prosecutors, however, I really resent it when they say they have no interest or desire in trying and convicting innocent or likely innocent people. Either it's a baldface lie, or just playing with semantics in that the prosecutor has convinced him/herself that every defendant is guilty therefore there are logically never any concerns about a defendant being innocent.

To be an effective prosecutor, you have to have a huge chip on your shoulder. You had to have had your bicycle stolen when you were 10 years old and never have gotten over it. Your job every single day is to ruin people's lives for as long as possible. You can't do that unless you firmly, unquestionably believe that all those lives deserve to be ruined, and for as long as the law permits.

To be an effective prosecutor, you have to have a huge chip on your shoulder. You had to have had your bicycle stolen when you were 10 years old and never have gotten over it. Your job every single day is to ruin people's lives for as long as possible. You can't do that unless you firmly, unquestionably believe that all those lives deserve to be ruined, and for as long as the law permits.

Wow.

You had me listening up to here. Everything you said was plausible (not necessarily correct, but plausible) right up to your unhinged rant at the end. You know what's funny? I don't think all or even most defense attorneys are dirtbags who will do anything to get a guilty guy off. In fact, I think most are honorable lawyers doing a tough job as best they can. Would it be too much to ask-since you don't know every prosecutor out there-to extend me the same courtesy?

I wonder if this problem is endemic to college towns, where the students basically do not vote for DA, either because of apathy or residency reasons. Thus, DA's pander to the townies by being draconian with students, knowing they won't get punished at the ballot box by students. I went to Penn State, and observed this phenomenon in DA Ray Gricar, the guy who mysteriously disappeared a couple of years ago - I was stuck by the severity of sentences he would seek for students who were convicted of offenses, and the glee he displayed at press conferences whenever he gained such a conviction.

Paxti: I stand by my bike comment. It's more than just prosecutors, anyone who is firmly, unquestionably a "law and order" and "lock em up and throw away the key" person likely was the victim of a crime at some point. Not being over the loss of your $250 Schwinn 25 years ago is certainly petty, but it is the sort of formulative experience that remains in the back of the mind of the "prosecutor type." If that chip is not on your shoulder, you won't be an effective prosecutor. You'd have too much sympathy for the defenants (a vast majority of whom are not accused of hurting anyone or anything). How else can you advocate for someone to be forced to spend 20 plus years in prison for possessing a leaf?

I think all prosecutors should have to spend 6 months in prison before being permitted to prosecute a fine-only misdemeanor (and I think legislators should have to spend at least a year in prison before being allowed to propose, speak about, or vote on any penal statute). Maybe defense attorneys should have to spend a certain amount of time in prison as well prior to being allowed to defend a crim defendant, so they will take the job and the seriousness of their responsibility to their client more seriously.

A defense attorney's duty IS to the defendant. A prosecutor's duty is supposed to be for justice, not for the state or for a conviction. Often justice means using prosecutorial discretion to dismiss the charges. A defense attorney should do absolutely everything possible, within the law, to secure an acquittal. The converse is NOT true with respect to prosecutors and convictions. Do you really know of occasions where a defense attorney broke the law to secure an acquittal? Not saying it never happens, but I've never seen it.

As a recent graduate of the law school at Duke, what's scandalous to me about this case is the way the university handled it: the professors and administration basically assumed guilt over innocence, and the near complete silence of the law school faculty, who should know better, in response to this, especially those, like, say, Erwin Chemerinsky, who teach and fancy themselves champions of civil rights.

If that chip is not on your shoulder, you won't be an effective prosecutor. You'd have too much sympathy for the defenants (a vast majority of whom are not accused of hurting anyone or anything).

This is just a ridiculous argument. Who do you think the defence lawyer is sympathetic to in a sexual assault trial? I'll give you a hint, it's usually not the accused. That doesn't stop a good defence lawyer from being "effective", even when it comes time to cross the victim. Which side a lawyer is sympathetic to doesn't matter all that much in court.

Nifong is a high profile exception, but I agree with the prosecutors who have posted. Almost all prosecutors behave ethically and competently, and only bring cases where they thing the accused is guilty.

I strongly disagree with them that wrongful convictions (as opposed to wrongful prosecutions) are not a problem, though. In almost every case, prosecutors decide to proceed based solely on the information they receive from the police. This could be the defence lawyer in me shining through, but while I believe prosecutors don't lie (often), police officers lie all the time.

And, unfortunately, because of mandatory sentences, often accuseds plead guilty to lesser offences because they cannot afford to run the risk of going to trial. Even if someone is innocent, there is ALWAYS a risk of a conviction at trial. When they are facing a draconian mandatory minimum, they will often take a deal.

Innocent people are convicted every day. The real scandal isn't evil prosecutors. It's good prosecutors working in the plea bargain system and incompetent defence lawyers.

This nonlawyer cannot fail to notice that today the NY Times is steaming with indignation, as usual, over the Guantanamo detainees, but no such indignation is apparent concerning the lacrosse players or Amirault. I understand that the issues are not the same: in one case, it's basically habeas corpus, in the other it's prosecutorial misconduct. But is the difference that important in terms of the results?

The Amirault and Duke Lax cases have in common the two factors of moral panic and an ambitious prosecutor. I posted on this at another blog couple weeks ago and will borrow - I can get pretty fearful thinking about it - not too high a chance that it would happen to me, but if it does, wow. My sports-mad ten-year-old - suppose he gets what we think is a long straw in the college lottery and gets admitted to Duke. And we dig a little deeper than we thought we had to to make that happen, and once there he gets invited to a party at the lacrosse team house, starstruck, thrilled to be there, and a stripper shows up - yikes! This woman decides she hasn't been treated right, and screams that she's been raped, and picks random guys out of a line-up and my guy is one of them, and a prosecutor who wants to get reelected (lets call him 'Mike N.')gets a grand jury to indict him. If our family can come up with $15000 a month for really good defense lawyers to scrutinize everything about the case for flaws, and to get them into the national press, we can save him. If not, it's twenty years.
My eight-year-old, who has always been just wonderful with young kids, takes a job in a day care after high school, and some hysterical mommy decides that he's been taking liberties with little Samantha and gets Samantha into the hands of a 'recovered-memory' type, and an ambitious prosecutor (lets call him 'Scott H') gets him indicted. This is not very different from what happened in several of the national-news day care cases ten-fifteen years ago. Again, really good and expensive legal representation probably keeps the kid out of the slammer, you don't have the money it's Concord Prison.
My now-five-year-old gets an accounting degree, and goes to work on Wall Street, and follows the orders of her superiors and the general practice in her firm on something involving options dating and, to get at the principals in the firm, an ambitious prosecutor (lets call him 'Eliot S.') gets her indicted. Again, it's off to the races, refinance the house, ruin for the family.
It's not terribly frequent, and often the defendants are less sympathetic - but when you read about it, and you think, 'this could happen to me' - you get nervous. There have been ambitious prosecutors forever, and it works often. McCarthy rode the moral panic about Reds to national power fifty years ago on the backs (partly) of innocent schlumps who had maybe been to a couple of lefty meetings. Eliot Spitzer is Governor of New York today, Scott Harshbarger got the Dem nomination for governor of Mass., lost only through a truly Kerry-esque level of incompetence on the stump.
But it contributes to a feeling that lightning could strike, and squirrelling away a lot of money is a good way to prepare.

From the stanpoint of seeing patients but being blinded by not having any investigatory material, sexual abuse prosecutions looks like Roman Justice. If someone unidentifiable in an Army unit was guilty of a grievous error, the commander would line up the troops and kill every tenth one (the never correctly spoken 'decimate'). Kill (now plea bargain) enough of the mostly innocent and the guilty will wise up. Rabinowitz' article led me to reflect that, if Gov. Romney was all that interested in justice, the Amiraults would have been pardoned.

One of the great outrages is that the accused have had their names made public and forever blackened due to patently false accusations by a profoundly screwed up accuser -- whose identity remains safely anonymous. This should cause a rethinking of so-called "rape shield" laws. While their purpose may be noble, in practice they can protect and maybe even encourage bogus accusations. Especially since the mere accusation of rape is sufficient to make a man a pariah in society.

This nonlawyer cannot fail to notice that today the NY Times is steaming with indignation, as usual, over the Guantanamo detainees, but no such indignation is apparent concerning the lacrosse players or Amirault. I understand that the issues are not the same: in one case, it's basically habeas corpus, in the other it's prosecutorial misconduct. But is the difference that important in terms of the results?

And this nonlawyer cannot fail to notice that many of those who are outraged over the Duke case are happy to see people locked up indefinitely at Guantanamo with no practical opportunity to challenge their detention. So the Duke defendants, who have the full range of protections afforded to criminal suspects, are being mistreated (I agree with this), but the detainees, who have virtually no legal protection whatsoever, are rightly imprisoned.

Steve Neely says that a prosecutor "faces the most rigorous burden in history: proof beyond a reasonable doubt to a unanimous jury."

Not true -- the rational basis test, which applies to so-called "non-fundamental rights" like earning a living and owning property, is a far more rigorous burden. And I would give my right arm (I'm left-handed) to argue those cases to a jury instead of a judge.

It is an open secret that conviction rates, in percentage terms, are usually over 90% for cases that go to trial. So, despite any "burden," the clear fact that remains (and one that most any defense lawyer worth her salt tells her client) is that, by going to trial, the defendant will almost certainly be convicted.

THAT'S why everyone pleads guilty. Whether or not they believe they are, in fact, guilty. Usually a defendant has to explain to a court why they are guilty before the court will accept this, but many times, defendants are just mouthing the words here.

Prosecutors know this too. They have immense power as a result. Courts give the government (prosecutors) every benefit of the doubt, because, unlike defense attorneys, they act, ostensibly, in the name of the public and of justice.

I'm not saying this is right or wrong; I'm just saying that prosecutors have, in practice, the lowest burden to victory in court of which I'm aware. It's proven by the fact that all these great prosecutors with unbroken winning streaks in public office, who, when they go into private practice on the defense side, start losing case left and right.

Let's not kid ourselves about who has the real burden. That's the defense (no matter what the law says).

One of the great outrages is that the accused have had their names made public and forever blackened due to patently false accusations by a profoundly screwed up accuser -- whose identity remains safely anonymous. This should cause a rethinking of so-called "rape shield" laws. While their purpose may be noble, in practice they can protect and maybe even encourage bogus accusations.

I can't imagine what motivated the complainant in this case, but do you really think she would have been deterred by the possibility of her name being published? Do you think she's that worried about what the New York Times publishes about her? Somehow I doubt it would impact her much. (The real impact on her will probably be in the local community -- and no doubt all her associates know of her involvement even if her name wasn't published.)

I agree with you completely that it's unfair to blacken peoples' names and convict them on CNN before they stand trial, but I don't see how putting alleged victims through the same process makes anyone better off. It would probably discourage far more real complaints than false ones. And let's be honest, most false complaints don't go anywhere as most prosecutors operate differently from Mr. Nifong.

Leaving aside First Amendment issues, wouldn't a better solution be to ban the publication of the names of people accused of a crime unless they are convicted? That would actually help the accuseds.

Byomtov, you're missing an essential point that I think an awful lot of people, especially lawyers, miss: the purpose of interning people at Guantanamo isn't to punish them for their crimes. They may be tried and punished, and it can happen completely in accordance with the various Geneva Conventions, and they can be punished; but the reason they're interned, as with prisoners of war, is to make sure they can't continue to operate against us, and hopefully to obtain useful intelligence that will help keep others from operating against us.

If we let some of them go, they would start trying to kill us again; this has been adequately demonstrated by the fact that some people released from Guantanamo have started trying to kill us again.

If we can't take prisoners and remove them from the battle, the only other option is to take no prisoners, and ensure they never leave the field of battle.

As usual, both the "all prosecutors are slime" and the "all prosecutors are saints" commenters are foolishly wrong --- clearly some prosecutors are not slime, and some are not saints. But I don't think anyone who is paying attention can contest the facts: there are bad prosecutors, there are bad cops, and there are people unjustly in prison, people impoverished by a successful defense, and people whose lives have been ruined by false charges. How many of them is unclear, but even one is too many.

I am not missing anything. You are following exactly the sort of circular logic that so many follow in th other thread. "We know they are terrorists because they are at Guantnamo. Therefore we don't have to try to determine if they are terrorists."

My point is that injustices can occur in normal criminal proceedings. How much greater is the potential for injustice in the case of Guantanamo detainees? Why can so many not understand that the same sorts of errors, self-seeking behavior, ass-covering, etc. that creates injustices in the criminal system is at work in Guantanamo, with the big difference that the detainees have close to no recourse.

What about the well over 100 inmates released from death row because they did not do what they were convicted of? What about the prosecutors who dealt with these cases? Have any of them faced accountability? Either they were incompetent or worse. In my job, if I fail to that magnitude it's good bye, not invoke employer-granted immunity.
Fact is, the system is absolutely stacked against the defendant from the moment the cops pick him up. Ken Lammers at the now dormant CrimLaw blog has demonstrated this amply and persuasively.
Sorry, prosecutors, don't take it personally, it's the system you serve that's is being attacked.

Paxti and Patterico (and any other prosecutors I missed),
I am a defense attorney, and I will disagree with those who say the prosecutors are intentionally convicting innocent people. However, that's not the greatest problem. One of the prosecutors above agreed that innocent people are convicted quite frequently, and it goes on in other offices, but he hasn't seen it in his six years. Hmmm. Shouldn't that make you a little bit suspicious. Yes, I look at the next county over, and they are clearly prosecuting people who are innocent, but here in my county, they are all guilty. Maybe, just maybe, you're not seeing the evidence in an unbiased manner.
And once again, oftentimes the question is not whether a person is guilty, but what are they guilty of, the highest degree of assault or the lowest. If you take over a case from another prosecutor and believe they overcharged, do you reduce the charges without first trying to extract a plea bargain?

My sister-in-law was accused by a prosecutor for shaking her baby, despite witnesses to the contrary, despite medical testimony from a pediatric neurosurgeon to the contrary. This prosecutor went to the media and said a lot of stuff similar to what Nifong said, without corroborating evidence. It almost seems like the prosecutor is trying to influence the jury pool before the trial - or am I just being cynical?

Prosecutors should treat every defendant like he/she's innocent, until they are proven guilty. When the news media are not able to affect the outcome of such a case, and prosecutors show some spine by prosecuting such a case fairly, then maybe I'll hold a different opinion. Until then, I'll assume that you have a dog in this fight, based on your above 2 sentences.

Some quotes from Ann Rand and "Atlas Shrugged" about the power of the government over the people and the people's inability to tell when they are breaking laws would fit nicely here.

The police power is one of the most abused powers of government! Prosecutors are just sevants to a tyrannical system that seeks control over more and more facets of our lives. We've gone from outlawing "bad drugs" to cigarretes to french fries.... what is next? Prosecutor misconduct is only a symptom of too much government power.

First. There is no absolute immunity for prosecutors in any common law country outside the USA. Look at Canada, the UK, Australia and New Zealand.

Second. A basic element justice is that the winner of a criminal trial leaves it unharmed. If someone is acquitted or the case is dropped with prejudice, the decent way would be to pay him the necessary defense costs (not the star lawyer from NY). By the way, that's the law in nearly all civil law countries.

Third. The laughable grand jury system should be replaced or reformed. The prosecutor must passa real "probable cause" test to get an indictment.

I disagree with the poster who critized Chemerinsky for not speaking up for the players.

True, Chemerinsky is from Duke Law School and is the author of a number of textbooks and hornbooks on constitutional law.

I do not believe that Chemerinsky's acquiescence in Duke's treatment of the accused should be taken to weaken the force of his arguments in his books. Those arguments should stand on their own, no matter how inconsistent with those beliefs his actions might seem.

Although some would argue that Chemerinsky's stance is inconsistent with his stated support for civil rights, I disagree. Chemerinsky may have felt he needed more information about the case before making a stand; or he may have been worried about his own physical safety in Durham if he defended the players; or he may have found Nifong's behavior acceptable; or he may have had other things to do that seemed more important.

Thus, I believe criticism of Chemerinsky for his silence is inappropriate.

On the other hand, I think that the law school, Prof. Coleman excepted, missed an opportunity to educate people about the importance of constitutional protections. But it is not fair to criticise them for the silence.

To reiterate a point I have raised before, part of the problem is the risk averse, authoritarian personality type too frequently found among prosecutors. A talented courtroom advocate with a few years' experience can make considerably more money in the private practice of law (at least in civil litigation) than the salary of a typical prosecutor with comparable experience. Given the ability to weed out cases where the likelihood of conviction (as disting from the likelihood of factual guilt) is low, most prosecution work is as difficult as shooting fish in a barrel or hosting "Let's Make a Deal".

What is the logical implication of this state of affairs? I should sugest that criminal prosecution (with some notable exceptions) attracts those who are untalented, those who are unable (or unwilling to try) to support themselves in private practice or, more commonly, those for whom wielding power and authority is more attractive than making money or taking risks.

I should sugest that criminal prosecution (with some notable exceptions) attracts those who are untalented, those who are unable (or unwilling to try) to support themselves in private practice or, more commonly, those for whom wielding power and authority is more attractive than making money or taking risks.

This is a very one-dimensional view. You could make the same argument about jugdes.

To reiterate a point I have raised before, part of the problem is the risk averse, authoritarian personality type too frequently found among prosecutors. A talented courtroom advocate with a few years' experience can make considerably more money in the private practice of law (at least in civil litigation) than the salary of a typical prosecutor with comparable experience. Given the ability to weed out cases where the likelihood of conviction (as disting from the likelihood of factual guilt) is low, most prosecution work is as difficult as shooting fish in a barrel or hosting "Let's Make a Deal".

What is the logical implication of this state of affairs? I should sugest that criminal prosecution (with some notable exceptions) attracts those who are untalented, those who are unable (or unwilling to try) to support themselves in private practice or, more commonly, those for whom wielding power and authority is more attractive than making money or taking risks.

I'm having trouble wrapping my tiny little brain around this post. I think it says, "man does not live by bread alone," but I can't be sure. Could you maybe rewrite your post with some smaller words? Thanks.

I'm a prosecutor. I pursue some cases with a vigor that some people find puzzling. I also regularly dismiss complaints and charges that should not have been filed to begin with, or which become insupportable as the adversarial process reveals more complete information for me to consider. Those tasks are integral to my obligation to serve the public -- which most definitely includes people charged as defendants. As I look back over the years, there are cases I wish I had dismissed rather than pursued. There are also cases I wish I had pursued more vigorously. I'm human, therefore I'm not perfect. Judges, defense attorneys and ultimately jurors all are important checks on my judgment.

Did you ever consider that prosecutors win often because they are selective about the cases they bring?

To the guy who misread my comment to say that after six years I see wrongful convictions in the next county all the time but never in my own:

Read my comment again. What I said was that in *nine* years of being a prosecutor I have read about cases in the country where innocent people have been convicted -- Randall Adams in Texas and several people on Death Row in Illinois, for example. I didn't say it was regularly happening in the next county over, but never in mine.

As someone else said, we're all human beings.

Also, there's a misunderstanding about what is considered prosecutorial "misconduct." Prosecutors can be guilty of "misconduct" for completely unintentional acts. The category is much broader than you seem to realize. I do believe in real consequences for those rare instances where they do indeed try to knowingly withhold critical exculpatory evidence.

Of course prosecutors are selective in the cases they bring; defense lawyers are selective in the cases they handle, too. Why is it, though, that prosecutors win in such stunning fashion? Over and over again? Regardless of the prosecutor? And why is that these same, careful, selective lawyers fare so poorly once they move to the private sector? Case selection will have some effect, no doubt, but there is little reason to believe it accounts for the striking win-loss disparity. Face facts: courts believe prosecutors. They are not perceived to have a bias. They are seen as seeking justice for the public; thus they win. NO MATTER THE CASE. I suggest, if you disbelieve me, that you spend a few weeks in state or federal court (your pick) watching prosecutors try any sort of cases. Watch how they win again and again, over (in many cases) better lawyers and in the face of dubious evidence.

It's ironic, yet true, that the legal burden placed on prosecutors, in life, doesn't really matter that much. People just don't like people accused by the government of crimes. Why would the government lie?

It used to be a well known adage that a prosecutor could get a grand jury to indict a paper bag. Conviction isn't mch harder.

Everyone in the criminal justice system knows this and acts accordingly. I'm not saying it's good or bad: it's simply the truth.

Jim Coman said under oath that the state Attorney General's Office had a policy of withholding a certain type of evidence helpful to defendants. As he described it, the policy would violate 30 years of U.S. Supreme Court rulings.

Sorry but I was under the impression that North Carolina has the Open Discovery law? Doesn't that law require the prosecutor to hand over the entire case file? All evidence regardless of any discovery motions?

Sorry folks. But what appears to me is that the mechanisms necessary to "guard the guardians" so to speak are broken. How is a runaway prosecutor restrained? Removed? Found out? Investigated? And just who really is responsible for doing so and how is it initiated? And how, if at all, is that prosecutor punished and how harshly?

Let's look at the Duke Rape case once again. DA Mike Nifong has been replaced by prosecutor Jim Coman of the NC Attorney General's Special Prosecution Unit.

If the hoax proceeds to trial, it will not be Coman's first attempt at placing innocent men behind bars. In 2003, despite the revelation that prosecutors David Hoke and Debra Graves withheld evidence that exonerated Alan Gell of murder charges that had sent him to death row, Coman decided to put Mr. Gell on trial for a second time. Later Coman would testify at the State Bar trial of Hoke and Graves to the effect that withholding evidence was standard policy in the Attorney General's office.

And what pray tell happened to two NC prosecutors who had been proven to commit misconduct? What astonishing punishment for trying to put a known innocent man in prison for at least 30 years?

That's why the Duke Rape Case is so vastly important. I think juries, and most definitely judges, have been far too favorable to prosecutors. I know that in the future I will view anything presented by a prosecutor with a gimlet eye.

I am not missing anything. You are following exactly the sort of circular logic that so many follow in th other thread. "We know they are terrorists because they are at Guantnamo. Therefore we don't have to try to determine if they are terrorists."

No, you either are missing something or you're purposefully rephrasing what I said to obscure my point: I didn't say "terrorists", I said "people." Whether or not they're terrorists --- and whether or not we can even define that word usefully --- they're people who were captured in the course of military operations, in close contact with the enemy. They're internees, but not necessarily either terorists or criminals --- after all, fighting for Nazi Germany wasn't illegal in Germany. None the less, they are properly interned, just as German and Japanese POWs were properly interned. We intern them, as I note, because we're soft-hearted people and prefer internment to shooting them after a drumhead court martial.

As long as you continue to try to treat this as criminal law, you're bringing a butcher knife to a gun fight.

At a bar assoication meeting, I heard an ex-prosecutor explain that we defense lawyers should advise our clients to plead guilty even if they didn't do what they were charged with. He said that our clients had done something, and that we knew as well as he did that they deserved some punishment.

Why was he an ex-prosecutor? Because he had become a judge.

There is a joke among defense attorneys:

Q: What do you call a prosecutor who cheats?
A: "Your Honor."

Most prosecutors are basically honest, but they do get full of themselves sometimes, and they have huge amounts of power. In some jurisdictions, prosecutors are more powerful than judges because 1) judges don't want to be labeled as soft on crime at the next election; and 2) prosecutors have enourmous patronage machines while judges get to hire a clerk, a bailiff, and maybe a secretary and court reporter.

As a result of this power, there are counties where the prosecutor has a lot power to pick who gets on the bench and who stays on the bench. It takes a very high level of integrity to resist abusing this much power, and prosecutors are drawn from the ranks of human beings.

The point is that some, possibly many, of these people are none of the things you describe. Can you truly not grasp that Very few of the detainees were captured under battlefield conditions?

In other words, you're statement that they're people who were captured in the course of military operations, in close contact with the enemy. is simply not accurate.

Among other things, the US was paying bounties to some fairly unsavory characters to bring in "terrorists," and they were happy to sell us innocent farmers and the like. Even in other cases its entirely possible that the US military made a mistake.

No one is talking about full-blown criminal proceedings. We are talking about hearings conducted under basic principles of fairness - including the right to have representation, to present evidence, to hear and challenge opposing evidence, etc.

Why are you so terrified of this? Are you just absolutely convinced of your description of the detainees? Why?

If that story is really true, and not exaggerated, then it's despicable.

For what it's worth, I heard it myself. Ironically, this swashbuckling prosecutor eventually became a pretty decent judge when it came to rulings and sentencing. When I heard the comment, he was relatively new to the bench, and I think he now has a better understanding of his role. (I do think the statement reflects the attitude he took as a prosecutor.)

The robe can change lawyers, sometimes for the better, sometimes for the worse. Some ex-prosecutor judges forget that they're not still prosecutors, some understand their new role. A few even get into power struggles with the elected prosecutor. You just don't know until they put on the robe.

1. In other words, you're statement that they're people who were captured in the course of military operations, in close contact with the enemy. is simply not accurate.

Prove it.

Particularly when dozens of ex-detainees, released after review by a review board, have gone *back* to fighting have either been captured again or have been killed on the battlefield.

2. No one is talking about full-blown criminal proceedings. We are talking about hearings conducted under basic principles of fairness - including the right to have representation, to present evidence, to hear and challenge opposing evidence, etc.

What on earth is your definition of "full-blown criminal proceedings" that isn't "hearings conducted under basic principles of fairness - including the right to have representation, to present evidence, to hear and challenge opposing evidence, etc."?

Aren't the latter the entirety of the former? So all you're advocating is not giving them "full-blown criminal proceedings" by giving them "full-blown criminal proceedings". Give me a break. I'm 43 years old, I don't buy silly nonsense like that.

3. This issue is exactly the same as the issues faced in Iraq by American soldiers. They have to deal with fighters who discard their weapons and then claim that they're innocent civilians caught up by the system. Frankly that's just total nonsense.

Here's the deal; if we cannot trust any ex-detainee to *be* a civilian then the only acceptable result is to perform summary executions on all of them.

Your choice. They remain in prison for life or until they're no longer a threat, or they die braced up against a wall or hanged.

BruceM: If that chip is not on your shoulder, you won't be an effective prosecutor. You'd have too much sympathy for the defenants (a vast majority of whom are not accused of hurting anyone or anything).

I've diagnosed BruceM's problem. Drug use is only major class of crime where you could say the perp is "not accused of hurting anyone or anything". He's a crack-legalizer, and that's why he sounds like a psycho.

His mistake is that he forgot to turn off people's skepticism and their brains first by mentioning the eeeevil drug laws. Otherwise you all would be nodding and agreeing and claiming that no such thing as addiction exists and law-and-order people are the devil...

Leaving aside First Amendment issues, wouldn't a better solution be to ban the publication of the names of people accused of a crime unless they are convicted? That would actually help the accuseds.

Yes. But should it be a civil or criminal penalty? As gratifying as it would be to see the jokers who were literally shouting the names at Duke locked up for even 1/4 of the term they were doing their very best to railroad their victims to, it ain't gonna happen. They won't even lose their jobs and/or student status. And as for reputation? Racist Durham is *still* applauding their courage.

Lest we feel safe, know that this prosecution was a close call. The railroad would have succeeded had several breaks not gone the way of the defense: Their presense of mind to take pictures, the expensive lawyers who detected the suppressed evidence, the repeated failure of the lineups no matter how hard the police stacked the deck, the mind-boggling extraordinary coincidence of the ATM photo.

The railroad would have succeeded. Those men would be serving out the prime of their lives, victims of fashionable bigots. Even if by some chance they weren't convicted, the bigots would have attributed the failure to 'rich lawyers'.

Their next victims won't have as many lucky breaks. The gamg of 88 as well as their enablers in the media should spend a week in jail, contempating what they almost accomplished.

And if they don't make it out of that jail alive due to an "accident", I won't shed a tear...

- Race. Strangely unmentioned in this thread. As in the OJ case, racial politics is one large factor behind the Duke Lacrosse train wreck. Nifong was up for re-election in a heavily black district - and he did what he had to do to win a close election. (For details, see: "Bonfire of the vanities")

- Media. Some here put forward the theory that media attention on the case has made it easier to reveal prosecutorial misconduct. Perhaps to some degree. But it is doubtful that the case would ever have gotten very far if not for the huge media impact it made. (For details, see: "Bonfire of the vanities")

- "Tough on crime policies". Some claim these make it easier to violate defendant's rights. This is no doubt true in some cases. However, in this particular case, the people leading the "hang-em-high" mob were hardly the usual "tough on crime" constituents, but rather include liberal college profs (88 of whom took out an ad in the college newspaper to decry the Lacrosse team!) and ethnic pressure groups. (For details, see: "Bonfire of the vanities", "I am Charlotte Simmons")

1. Yes the railroad had come very close to success. In part because of the adequate evidence gathered/created by the LAX players. In part because of the mistakes by Nifong. But it was a fairly close run thing. Had the alibi paper trail not happened or had a sex act with one of the LAX players concluded the private dance show, something not entirely uncommon in my experience, then there would be both physical evidence of sexual activity and no viable alibi for anyone.

In which case at least one or more of the LAX players would be facing a near lifetime in prison.

2. I am still extremely troubled by the seeming common element in North Carolina's prosecutors in withholding exculpatory evidence at will. If Nifong receives more than a reprimand, it might be the first time any NC prosecutor has been so punished in a generation.

3. I really don't think the media had very much to do with the outcome of this case. Back in April of 2006 very very few media sources we promoting the idea that due process rights should apply. Instead the vast majority were highly in favor of outright imprisonment. It's only been in the last few months that many of them have backtracked significantly in the hopes of covering their less than stellar early reporting.

Some commentators on other threads have criticized the lack of blogging on the Duke case here at the Conspiracy. In my case, as a former criminal prosecutor (in the Cook County State's Attorney's Office), I am very interested in the issue of prosecutorial misconduct and incompetence in general, and in this case in particular, and have been following events on Durham-in-Wonderland.

Prof. Barnett, I posit to you two issues.

One, as in Massachusetts. Ms. Rabinowitz did some of her best work in regards the Amirault cases here--as I'm sure you know--in which first county prosecutor then AG Reilly essentially persecuted the Amiraults regardless of the facts, and he was backed up by his successor Martha Coakley. Reilly and Coakley, dispicable as the were, were both elected and re-elected in their own right, largely beating on the Amirault persecutions, and they have defended to this day the prosecutions in those cases.

Two, the recent sacking by the Bush administration of the federal prosecutor in San Diego, who has targetted more than a few Republican politicians who are alleged to have engaged in corrupt practices.

It seems to me that we have two choices. One, that prosecutors are elected, in which case they will be able to be re-elected by, essentially, lying. Two, that prosecutors are selected by an executive authority (in the federal case, the president), in which case they can be removed at whim when it becomes politically disadvantageous for the executive authority to allow him or her to remain in the post.

Or do you have a middle ground, that might remove the prosecutor from the direct selection by the electorate, but not have him or her subject to the whims of the executive?

I'm not a lawyer, so could someone here please explain why prosecutors are allowed to publicly discuss cases before they've come to trial? The political benifit to the prosecutor is obvious, but what's the public benefit of their being allowed to say anything beyond "that case is currently under investigation"?